Legal Considerations for Your Organization’s Social Media Policy

Last year, we covered the general considerations for developing a social media policy that governs both the company’s social media presence and employees’ personal social media use. This post will dive a little deeper, then look at enforcement issues and the legality of social media policies themselves.

Social Media Policy Drafting

Whether your company uses social media for business purposes or not, many of your employees certainly do. Their online actions can affect your company, so your social media policy should establish rules to protect the company’s interests. Here are a few things to consider:

• Encourage employees to use good judgment and act prudently on social media, because no policy can possibly address every issue involving social media use.
• A social media policy should affirm that the company’s other policies—regarding discrimination, harassment, confidentiality, etc.—apply to employee social media use.
• Communicate that employees should identify themselves as company employees before posting information that could be seen as endorsement of the company, or criticism of a competitor.

Many businesses now use social media for marketing and other purposes; so it’s good to incorporate appropriate provisions into your policy. Here are a few questions to consider:

• If the company has official social media accounts, how are they managed? Has the company established ownership of its social media accounts and information?
• How does the company monitor what other people post on its pages?
• If employees use social media as part of their jobs, what risks does that create to the company and how are they managed?
• Does the company use social media for recruitment? How?
• Does the company have relationships with any third parties, such as a public relations firm, who use social media to market the company?

Enforcement Issues

When creating your company’s social media policy, keep in mind that the company will have to enforce each provision. Lax or inconsistent enforcement sends a message that the company’s policies do not reflect the company’s actual expectations, plus it risks discrimination claims when the policy is enforced.

Your social media policy should clearly define what is and is not considered appropriate online conduct, but you will have to decide how thorough you are willing to be. Is it worth making rules about your employees’ personal social media use, or are you seeking to govern only what they say regarding your company? Most social media policies fall somewhere in between. Before any social media policy is implemented, it’s important to determine methods for monitoring employees’ social media activity and enforcing the policy.

Legal Considerations

As important as a thorough social media policy is, there are legal parameters around such policies. In one case, the National Labor Relations Board (NLRB) found that two provisions of a company’s social media policy were unlawful.

The first provision required that employees always be “honest or accurate” when posting information or news. The NLRB determined that this was too broad a requirement: “…employees have the right to make a wide variety of statements in the context of a labor dispute, including inaccurate statements, as long as those statements do not constitute malicious defamation.”

The second unlawful provision of the company’s policy prohibited employees from posting anything relating to “internal reports, policies, procedures or other internal business-related confidential communications.” At first glance, this may seem like a reasonable expectation of company confidentiality. However, the board decided that “policies and procedures” could be reasonably inferred to include information about employees’ terms and conditions of employment; under the National Labor Relations Act (NLRA), employees have the right to disclose and discuss such terms, such as wage rates, so this provision was also considered too broad.

In drafting your social media policy and prohibiting certain types of statements, make sure you do not limit your employees’ freedom of speech too much, or your policy may be considered unlawful. It is important to protect your company’s public image and confidentiality, but it is equally important to safeguard your employees’ rights. Be very careful not to infringe upon their freedom of speech, or to run afoul of the NLRA’s attempts to prevent discrimination or other unfair employment practices.

Creating an effective and appropriate social media policy that is reasonable and enforceable can be a challenging and delicate process. If you have any questions about the legality of your proposed provisions, the proper place of social media in your organization, or other related issues, do not hesitate to contact legal counsel for assistance.

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Featured Image by Rebecca Sidebotham.